Central Administrative Tribunal - Delhi
Tosh Kumar Nichani vs Govt. Of Nct Of Delhi Through Chief ... on 26 March, 2010
Central Administrative Tribunal Principal Bench OA No.3736/2009 New Delhi this the 26th day of March, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) Tosh Kumar Nichani, S/o late Sh. Dharni Dhar Nichani, R/o Block No.1, House No.2, 2nd Floor, Subhash Nagar, New Delhi-110027. -Applicants (By Advocate Shri T.D. Yadav) -Versus- 1. Govt. of NCT of Delhi through Chief Secretary, Directorate of Education, I.P. Estate, New Delhi. 2. The Director of Education, Directorate of Education, Old Secretariat, New Delhi. 3. The Secretary, Director of Education, Old Secretariat, Govt. of NCT of Delhi, New Delhi. -Respondents (By Advocate Shri Ram Kanwar) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicant, who retired on superannuation on 31.12.2006, has challenged, by way of this OA, an order passed by the respondents on 22.8.2006, imposing upon him a penalty of reduction to lower stage for a period of two years with cumulative effect. Also assailed is an order passed on 4.12.2006, whereby the period of suspension from 9.7.1999 to 24.3.2005 has been treated as not spent on duty. Applicant has further assailed appellate order dated 16.1.2009, upholding the penalty and treatment of suspension period.
2. Applicant while working as TGT (Social Science A) has been charged for running money committees collecting lakhs of rupees from people and staff members of the School. It is also alleged that applicant during this period has purchased certain properties. It is further alleged that on closure of money committees he has not returned money to the subscribers. On the basis of the finding recorded charge against the applicant has not been proved.
3. A disagreement note was served upon applicant on 27.12.2007, which has been elaborately responded to. The disciplinary authority (DA), without dealing with the contentions of the applicant, recorded the following observations to impose upon applicant a penalty:
The matter has been placed before me for decision. I have carefully gone through the reply dated 01/03/2006 of Sh. Tosh Kumar Nichani, TGT (Sc-A). As for article of charge-I, the Charged Official has again harped on the Registration issue. Notably, the chargesheet no where charges him of getting a finance company registered. It simply mentions the complete name of the firm by which it was known to/introduced to the customers. The Charged Official has blown this issue out of proportions and has thus successfully diverted the attention of Inquiry Officer from the main issue. On this very ground, the Inquiry Officer has freed Charged Official of the two main charges.
As for Article-II of the chargesheet, the Charged Official has himself admitted having indulged in sale/purchase of the properties (except two) although he has also produced documentary proof of giving information about them to the Department. There is nothing new in the reply of the Charged Official about article-III as well.
In these circumstances, I, find no merit in the representation of the Charge Official against the Disagreement Note and squarely hold him guilty of all the three charges.
4. The appellate authority when was sitting on the appeal, an order passed by the Tribunal led to disposal of the appeal of the applicant with the following observations:
I have heard Shri Tosh Kumar Nichani, TGT (Sc.) (Retd.) in person on 25.11.2008 and I have also gone through all the relevant files/documents. There are a number of statements from those teachers who have been cheated by Shri Tosh Kumar Nichani, TGT (SC.) (Retd.) and I have seen these letters. The charged official himself admitted during the enquiry to having indulged in the sale/purchase of the properties. I find that the Disciplinary Authority that is, the Director (Education) has examined the matter in depth and has given cogent and sound reasons for the Disagreement Note dated 27.12.2005. I agree with the Disciplinary Authority that the Inquiry Officer has not examined the case properly.
In view of the above, I do not find any reason to disagree with the decision of the Disciplinary Authority. The order of the Director of Education dated 22.8.2006 is hereby upheld.
5. Learned counsel of applicant would contend that certain documents, which were required for defence and for which a request was also made, have not been served upon him. He also states that the orders passed by the DA as well as the appellate authority are non-speaking without dealing with the contentions of the applicant.
6. Learned counsel would lastly contend that the penalty imposed, hardly four months before his retirement, of reduction to lower stage for a period of two years would not be in consonance with rules and law.
7. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that applicant having admitted the charge of purchasing properties though informed, the charge has been rightly proved and on other issues it is stated that the findings recorded by the DA are reasoned one and the penalty imposed is commensurate with the misconduct.
8. We have carefully considered the rival contentions of the parties and perused the material on record. Leaving other grounds open, as we find that an elaborate discussion has been arrived at by the DA to which applicant has preferred a detailed representation, yet none of his contentions has been discussed by the DA. No finding has been recorded, except reiterating the contentions of applicant before the EO, which has deprived applicant a reasonable opportunity to defend in the enquiry. A quasi-judicial authority when functions, reasons are essentially to be recorded in support of the order, as ruled by the Apex Court in Roop Singh Negi v. Punjab National Bank, (2009) 1 SCC (L&S) 398. We do not find under the CCS (CCA) Rules, 1965 any provision which dispenses with the requirement of recording reasons. As far as appellate order is concerned, the order is non-speaking, without dealing with the proportionality of punishment. Moreover, the punishment imposed of two years reduction, hardly four months before the retirement, is not in consonance with law. It is also pertinent to note that the period of suspension has been treated as dies non, causing civil consequences upon applicant, without putting him on notice, through an addendum issued by the respondents, which is also contrary to the principles of natural justice.
9. In the above view of the matter, the OA is partly allowed. Impugned orders are quashed and set aside. The matter is remitted back to the DA to pass fresh order, dealing with the contentions of the applicant by recording reasons, within a period of two months from the date of receipt of a copy of this order. In such an event, law shall take its own course.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.